C-258/90

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PESQUERÍAS D E B E R M E O AND NAVIERA LAIDA v COMMISSION

Finally, I should also mention Article 3(2) of The facts of the two cases before the Court Commission Regulation (EEC) No may be summarized as follows: 1871/87 laying down detailed rules for implementing Council Regulation (EEC) N o 4028/86 as regards schemes to encourage exploratory fishing, 2 under which O n 13 December 1989 Pesquerías de Bermeo SA and Naviera Laida SA submitted applica- tions to the General Secretariat for Sea Fish- eries in Madrid. O n 7 February 1990 the 'To qualify for an incentive premium, voy- General Secretariat for Sea Fisheries ages may not begin until after the date on informed them that it was prepared to award which the application for aid is recorded as aid equivalent to PTA 43 931 600 or 20% of received by the Commission.' the eligible costs, provided that the Commis- sion decided to grant the incentive pre- miums.

According to Article 15 of Regulation N o 4028/86, the incentive premium shall be On 14 February 1990 the applicants submit- equal to 20% of the eligible cost of the voy- ted their applications to the Commission via age and presupposes that the Member State the Spanish authorities. Naviera Laida SA concerned shall contribute between 10% and began its fishing voyage on 15 February 20% of such cost. 1990 with the vessel 'Geminis' and on 22 February 1990 Pesquerías de Bermeo SA commenced its voyage with the vessel 'Ceres'. Article 16(1) of Regulation N o 4028/86 stip- ulates that projects shall be submitted to the Commission through the Member State con- cerned, once the favourable opinion of the O n 24 April 1990, at a meeting of the Stand- latter has been obtained. ing Committee for the Fishing Industry, the Commission made the following statement:

Thus, as regards 1990, the Commission con- Of further relevance to the present cases is siders that, on the basis of previous voyages, the fact that the Commission, on 7 Novem- it is no longer appropriate to pursue this ber 1989, had decided to grant incentive pre- type of measure in the zones of the South- miums for two projects submitted by the West Atlantic Ocean where those voyages applicants on 14 February 1989 and involv- were conducted.' ing the same vessels, the same zones and the same fish species as the projects in respect of which the applicants applied for aid on 14 February 1990. The Commission had pointed out in its decisions of 7 November The Commission has pointed out that the 1989 that all the conditions governing the basis for that statement was the fact that it grant of incentive premiums had been satis- had, between 1987 and 1989 granted incen- fied and that the projects were among those tive premiums for a total of 42 exploratory best suited to promoting the Community's fishing voyages, 25 of which were made in interest within the common fisheries policy. the South-West Atlantic Ocean and con- cerned the same fish species as those referred to in the applicants' projects. Forms of order sought by the parties

(i) that the Commission's decisions were adopted after the expiry of the two-month (ii) dismiss the applicants' request for a dec- period laid down in Article 16(3) of Regula- laration that they are entitled to receive tion N o 4028/86, and; incentive premiums;

(ii) that the Commission, following an inter- val of six months, adopted decisions to grant, (iii) declare the claim for damages inadmis- or not to grant, incentive premiums for sible or, in the alternative, dismiss that projects which were substantially identical, claim;

the applicants set out a large number of (iv) order the applicants to pay the costs. grounds in support of their contention that the Commission decisions should be declared void. From this point on I shall discuss the sub- missions made by the parties only in so far as is necessary to provide a basis for my own views on their conclusions. I would also I believe that the contentions raised by the refer to the Report for the Hearing for an applicants can best be examined in the light account of the facts of the cases and the legal of the replies to the following three ques- views expressed by the parties. tions:

(a) Is the legal effect claimed by the appli- Do the applicants have capacity to bring the cants connected with the failure to com- proceedings? ply with the period laid down in Article 16(3) of Regulation N o 4028/86?

The Commission's decisions are addressed to the applicants. The applications may accord- ingly be treated as admissible: see the second (b) Did the Commission infringe Regulation paragraph of Article 173 of the EEC Treaty. N o 4028/86 in its finding that the appli-

The Commission has submitted that the pur- pose of the period is merely to indicate the time by which the Commission should gen- Support for this contention is adduced from, erally present its decision. According to the inter alia, the fact that Article 3(2) of Regu- Commission, the purpose of the period is to lation N o 1871/87 can be interpreted as indicate the date from which proceedings meaning that an exploratory voyage may begin immediately after the date on -which the application for aid has been recorded as 3 — The applicants refer in this connection to the Court's judg- received by the Commission. According to ment in Case 32/79 Commission v United Kingdom [1980] ECR 2403. It was argued in that case, inter alia, that the the applicants, therefore, since an explor- United Kingdom had tailed to fulfil its obligation to imple- ment Regulation N o 1779/77 by way of measures which had atory voyage will generally begin when the been laid down in law and published. The Court expressed Commission has adopted its decision, only a itself in the following mannen '... This obligation to intro- duce implementing measures which are effective in law and negative decision is required to be adopted with which those concerned may readily acquaint themselves is particularly necessary where sea fisheries are concerned, within the period, since otherwise any failure which must be planned and organized in advance; the requirement of legal clarity is indeed imperative in a sector in to comply with the period in such a case which any uncertainty may well lead to incidents and the would detrimentally affect applicants. application of particularly serious sanctions' (paragraph 46).

The Court had an opportunity to express its Considerations of this type, however, are of views on such a question in its judgment in course insufficient to form a basis for the Case 349/85 Denmark v Commission [1988] assumption that the Commission's failure to ECR 169. Article 5 of Regulation N o comply with the period has the effect in law 729/70 on the financing of the common agri- which is claimed by the applicants. cultural policy prescribes that the Commis- sion must clear accounts within a period of one year; the Commission had failed to com- ply with the period in question. The Court ruled as follows: I believe that the following considerations determine the view which must be taken with regard to the applicants' submissions. 4 — Such a provision governing a time period was, for instance, the subject of the Court's judgment in Case 148/87 Fry- dendahl Pedersen A/S v Commission [1988] ECR 4993. That case concerned the validity of a decision adopted by the Commission and addressed to the Danish Government, in which the Commission stated that there were no grounds for the repayment of import duties paid by the applicant. Article 7 of Regulation N o 1575/80 is worded as follows: 'If the Regulation N o 4028/86 does not mention Commission fails to take a decision within the period any legal consequences of a failure to comply referred to in Article 5 or fails to notify a decision to the Member State in question within the period referred to in with the period laid down in Article 16. This Article 6, the decision-making authority shall grant the application'. The Court went on to declare the decision is significant because the general rule must adopted by the Commission to be void, by reference to the be that such a failure cannot have the very fact that it had not been adopted before the expiry of the prescribed period and that the Commission's attempt to cir- far-reaching legal consequences claimed by cumvent the time-limit constituted a misuse of procedure.

I believe that the inference to be drawn from this is that the legal consequences of a provi- The purpose of exploratory voyages is there- sion relating to a time period, the wording of fore to extend the Community's fishing pos- which indicates that it does not attract a sibilities and thereby its sources of supply. It sanction, must be determined in the light of is for the purpose of attaining that objective the nature and objective of the decision to be that the Commission is required to adopt adopted within the period in question, and decisions to grant incentive premiums. that serious attention may be paid in certain Incentive premiums are not intended as circumstances to an addressee whose inter- financial aid for hard pressed areas of the ests have been detrimentally affected. fisheries sector, and no assessment is made of the needs of the recipient when a decision is taken to grant an incentive premium. Incen- tive premiums — as the name suggests — have as their sole purpose to encourage With regard to the purpose behind the Com- recipients to undertake certain activities in mission's decisions to grant incentive pre- the Community's interest. miums, the preamble to Regulation N o 4028/86 provides as follows:

I do not believe it possible to derive from such an objective any argument which would '... whereas, moreover, since the Community support the application to the period in has a deficit in fish products, it must endeav- question of the legal effects claimed by the our to find new sources of supply, in particu- applicants. lar by increasing its fishing possibilities and by extending its activities in the aquaculture sector;...

voyages, in so far as exploratory voyages, before the adoption of any decision could be with all the associated expenditure, may be expected. Only some three weeks after the commenced prior to the expiry of the period expiry of the period the applicants received given for the Commission to take its deci- notification from the Commission to the sion; this is expressly provided for in Article effect that projects of this type would no 3(2) of Regulation N o 1871/87. longer qualify for aid (the Commission's let- ter is dated 25 April 1990, that is to say, ten days after the expiry of the two-month period, although it is claimed that the letter was not received until 7 May 1990). In other words, the position of the applicants would This argument must be rejected. Article 3(2) not have differed to any great extent if the is formulated in negative terms, in the sense Commission's decision had been adopted that the purpose of the provision is to pre- within the period and accordingly been vent aid being granted in respect of explor- unchallengeable. atory voyages which begin before the appli- cation has been recorded as received by the Commission. In other words, the provision does not lay down a general system under which voyages may begin before the Com- There are, accordingly, no special and signif- mission has adopted its decision. icant circumstances with regard to the period at issue such as to justify, in the absence of express provisions, the very extensive legal effects claimed by the applicants being attrib- uted to the failure to respect the period laid down in the regulation. I therefore take the Any applicant for aid who begins his voyage view that the failure to comply with that before the Commission has taken its decision period cannot per se result in the invalidity is operating on his own account and at his of the decisions. own risk. It cannot be disputed that the Commission may reject the application for aid before the expiry of the two-month period, even though the fishing voyage has already begun. There does not appear to be any compelling basis for the view that the (b) Did the Commission infringe Reguhtion applicants' legal position should radically No 4028/86 in its finding that the applicants improve once the two-month period has did not satisfy the conditions for granting the expired. The applicants must have been well incentive premium? aware that they were running a risk in begin- ning the voyages before the Commission had adopted its decisions.

only 6 months after the first positive deci- mate of potential fishery resources, stable sions — reach the opposite result with and profitable exploitation seems possible in regard to applications concerning fishing the long term'. As we have seen, the Com- voyages which in all major respects corre- mission, in its decision not to grant aid, sponded to those undertaken in 1989. pointed to the fact that this condition had not been satisfied. The parties disagree on the extent to which it is correct to say that this condition was not satisfied. However, it also becomes clear from the Commission's I have no doubt that the Commission, in submissions that the refusal was based pri- adopting its decisions, acted within the marily on the fact that the zone in question parameters of the discretion which it had already been adequately explored. As requires when administering the aid scheme. has already been mentioned, the Commis- sion pointed out that a total of 42 projects were carried out over the period 1987-1989, and that 25 of these related to exploratory voyages in the South-West Atlantic and involved the same fish species. The Commission, in its decisions of 6 June 1990, justified its refusal in the following terms:

The applicants further contend that it fol- (c) The principles of legal certainty and legiti- lows from Anicie 14(3) of the regulation mate expectation that, 'with a view to establishing the basis for the stable long-term exploitation' of a zone, incentive premiums may have to be granted to several exploratory voyages in succession. The Commission has pointed out that a The applicants take the view that the Com- number of the applicants' submissions were mission's decisions are in conflict with this only explicidy dealt with in their replies. provision on the ground that they refuse the This is in particular the case with regard to applicants their requests for incentive pre- the submissions that the Commission, miums in respect of further projects relating through its decisions, breached the principles to exploratory fishing in the same zone. of legal certainty and legitimate expectation.

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OPINION OF MR GULMANN — JOINED CASES C-258/90 AND C-259/90

that 'on the expiry of the period ... the Com- which is capable of being altered by the mission, on the basis of new criteria which it institutions of the Community in the exer- had adopted on 6 June 1990, wished to cise of their power of appraisal will be main- amend the essential characteristics of the tained. 8 1 do not believe that the fact that the fishing season in question, owing to a serious Commission expressed itself at a particular lack of foresight ...' 7, and that 'the Commis- time in favour of a specific type of explor- sion's attitude was to inform [the applicant] atory voyage should be allowed to restrict ... after a period of more than four months ... the Commission's scope for altering on that it had changed its mind and in particular objective grounds its view as to the type of that it would not be granting the aid, even projects which best serve the Community's though the exploratory voyage had already interests. begun ...'. 7

8 — See, inter alia, the Court's judgment in Joined Cases 424 and 425/85 Coöperatieve Melkproducentenbednjven Noord- Nederland BA ('Frico') and Others v Voedselvoorziening! In-en Verkoopbureau [1987] ECR 2755, paragraph 33, where It ought to be noted in this regard that the the Court ruled that 'if it found that large private stocks of Court has ruled in its case-law that traders butter were accumulating in Member States with low interest rates, the Commission was entitled to assess the situation in are unable to claim that they have a legiti- a différent way than several months before. It is established case-law ... that traders are unable to claim that they have a mate expectation that an existing situation legitimate expectation that an existing situation which is capable of being altered by the institutions of the Commu- nity in the exercise of their power of appraisal will be main- tained. A reduction of the interest rate talten into account for the reimbursement of the cost of financing storage was thus a possibility that a prudent trader should have taken into 7 — Application in Case C-258/90, at page 21 of the French consideration ...'. translation.

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PESQUERÍAS D E B E R M E O AND NAVIERA LAIDA v COMMISSION

Conclusion

I w o u l d accordingly suggest that the C o u r t should dismiss the applicants' claim to recognition of their right to receive incentive premiums, dismiss the remaining s u b - missions of the applicants and o r d e r t h e m to bear the costs of the proceedings.

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